Fan Art vs. Copyright Infringement: What’s Legal?

Maybe you smile or laugh when you pass that little day care center with the horrid painting of Mickey Mouse and Bugs Bunny on their sign or the army surplus store with Beetle Bailey on the side brick wall but are they flirting with major copyright infringement? Would Disney, Warner Bros. or King Features send cease and desist letters or have black-suited lawyers march in and hand over subpoenas? Yes… and no. Some say there’s a fine line, being small potatoes or flying under the radar. Others live with copyright infringement judgements they will never be able to pay off in ten lifetimes.

I’ve spent most of my design career working with licensed properties from Disney, Pixar, Warner Bros., Harley-Davidson, DC and Marvel Comics, Nickelodeon, Cartoon Network, Nintendo and a few more top licensed properties. I’ve also been the first one to turn in the day care centers and corner stores to the corporate lawyers. Sometimes they said they’d “slam” the infringement and other times they said they wouldn’t lift a finger.

I was a bit shocked to see that Fab.com was shilling a collection of fan art posters that pushed the boundaries of copyright infringement. The entire collection includes at least a dozen trademarked characters and while nicely done, will Fab or the artist be hearing from the companies that own the character rights?

Trademarked characters has become big business for some fan art creators. Posters, T-shirts, and other items appear at Comicons, CafePress, Etsy and private web sites and the question is, how do they get away with it and do they get away with it?

Very few copyright issues are as divisive or as headache-inducing as fan creations. Whether it is fan fiction for a popular fantasy series or fan art of a popular movie, these creations almost instantly walk into a copyright mess that can be enough to make even the boldest attorney cringe.

Bailey continues with a look at the legal ramifications:

According to copyright law, copyright holders have the sole right to distribute derivative works based on an original creation. This includes sequels and any other work that includes copyrightable elements from the original creation.

As was confirmed in the recent “Catcher in the Rye” case, characters can be granted copyright protection as can many other non-expression elements of the original work. This is furthered that most fan creations are built upon plot elements and other copyrightable parts of the original material.

That being said, fair use may protect some fan creations from being an infringement, but that is handled on a case-by-case basis, looking at the facts of the actual work. However, most fan creations, by their very nature, don’t parody or criticize the source material, which would provide a great deal of protection, nor are they highly transformative, meaning that they are less likely to win in the even that such a suit takes place.

It is also worth noting that fan fiction and fan art can be a trademark violation as well, especially if it uses names and titles in a way that causes confusion as to whether they are official. Trademark disputes over fan creations are rare, but still possible.

Yet, despite a relatively strong legal position, lawsuits over fan fiction and fan art are extremely rare. This is especially odd considering that many of the rights holders who are the most common target of fan creations are also among those most aggressive at stopping other infringement of their work.

On the fan’s side, Bailey writes:

From a copyright holder viewpoint, fan fiction and art is usually not very harmful. Fans create works that are openly recognized to be non-canon to the story and are not replacements for the original.

In fact, some feel these fan communities actually serve a valuable service to copyright holders by providing a thriving site for fans to visit, keeping them entertained and engage between official releases. In short, since fan creations don’t take away sales of the original work, they are often seen as free promotion and a way to grow the brand without cost or effort.

The bigger issue, however, is the cost of going to war with fans. Being litigious with creators of fan art can be very costly, not just in terms of court costs, but in terms of backlash. No creator wants to sue their fans, especially when the fans aren’t earning revenue, and as such most creators will tolerate fan fiction and art under most circumstances.

“Troops” is a mockumentary film by Kevin Rubio, which made its debut on the Internet in 1997. The film is a parody of COPS, set in the Star Wars universe. In the film, Imperial stormtroopers from the infamous Black Sheep Squadron patrolling the Dune Sea on the planet Tatooine run into some very familiar characters while being filmed for the hit Imperial TV show Troops. The film has proven incredibly popular with Star Wars fans, and was awarded the inaugural Pioneer Award in the Lucasfilm-sponsored 2002 Official Star Wars Fan Film Awards. No one was sued.

So is it illegal to sell your fan work? Not necessarily. It is possible to commercialize fan works, especially when those works critique or parody the original. The case that hits home just how securely parody fits within fair use is Campbell v. Acuff-Rose Music, which held that 2 Live Crew’s rap parody of Roy Orbison’s “Pretty Woman” was a legal, non-infringing parody, even though their use of the song was clearly commercial and used substantial amounts of the original song. A more literary case is that of The Wind Done Gone, Alice Randall’s novel that retells Gone with the Wind from the perspective of a Tara Plantation slave. Although the 11th Circuit in the resulting court case Suntrust v. Houghton Mifflin Co. didn’t actually rule that the book was a fair use parody, it did vacate an injunction against the book’s distribution, stating that it was possible that a carefully written parody, even one that borrows so heavily from its source, could be a legitimate fair use. The case was ultimately settled out of court.

So perhaps you want to skewer Rowling’s original text by retelling the Harry Potter story from Draco Malfoy’s perspective, portraying Harry Potter as a rich, popular jock who always gets his way. The more you transform and comment on the original text, the more likely you are to create a work that falls under fair use, even if your work is commercial. Consider the numerous Twilight spoofs on the market.

The question of a transformative works is quickly explained further in the article:

Aaron Schwabach, a professor at the Thomas Jefferson School of Law and author of Fan Fiction and Copyright: Outsider Works and Intellectual Property Protection says that yes, this sort of work is more likely to be protected as transformative. After all, he notes, Harry and Draco aren’t behaving like Rowling’s characters if they’re getting all smoochy with each other. However, it’s that very sort of transformation that will earn you the ire of certain creators.

Davis concludes with the ultimate question anyone who does fan art should ask; “what should you do if you receive a cease and desist notice?”

Increasingly, content creators and publishers are smiling upon fan works, but some would rather see fan works go away (and others would prefer that very specific fan works, such as erotic ones, cease to exist). It can be a bit frightening to receive a cease and desist letter, especially if it comes from a large company with expensive lawyers.

Fortunately, there are resources to help fan writers and fan artists. The Organization for Transformative Works is ready to come to the aid of noncommercial fan writers, while organizations like Chilling Effects and the Electronic Frontier Foundation handle all sorts of cases relating to your online rights. Professor Tushnet noted that frequently, if an attorney responds to a cease and desist letter, the sender of the C&D will drop the matter. She notes that education is the best way to keep fan works thriving online, both so that fan creators understand their rights and so they’ll know whom to turn to if they’re accused of infringement.

Fan art done for personal pleasure shouldn’t carry legal risks as long as the art isn’t displayed or disseminated. On the other hand, fan art done to make a profit will expose the fan to the risk of suits for copyright and trademark infringement. We all know the enthusiasm with which Disney, for example, pursues those who copy their characters. It’s unfortunate that a labor of love can become a legal nightmare, but profiting by selling legally protected images does involve legal risk.

In other words, as per the opinions and advice of all the legal sources quoted here, have fun drawing and painting but when you put it on the web or try to sell it, be prepared for legal action and remember, just the attorney’s fees will cost you more than you are prepared to spend.

Other resources…

Here’s an hour-long presentation on copyright law and fan art from San Diego ComicCon 2012, presented by a lawyer from DeviantArt who once worked as a copyright enforcer for Paramount.

About the Author

Speider Schneider

Speider Schneider is a former member of The Usual Gang of Idiots at MAD Magazine and has designed products for Disney/Pixar, Warner Bros., Harley-Davidson, ESPN, Mattel, DC and Marvel Comics, Cartoon Network and Nickelodeon among other notable companies. Speider is a former member of the board for the Graphic Artists Guild, co-chair of the GAG Professional Practices Committee and a former board member of the Society of Illustrators. Follow him on Twitter @speider